Fick v. State

DANIEL HASSAN FICK, Plaintiff,v.STATE OF ALABAMA and MOBILE COUNTY PUBLIC SCHOOL SYSTEM, Defendants.

REPORT AND RECOMMENDATION

P.
BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE

This
cause is before the Magistrate Judge for issuance of a report
and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B)
and S.D. Ala. GenLR 72(a)(2)(S), on Defendant State of
Alabama's motion to dismiss (Doc. 20) and Plaintiff's
response in opposition (Doc. 24).[1] Based on the contents of
these pleadings and all other relevant pleadings in this
matter, the Magistrate Judge RECOMMENDS that the State of
Alabama's motion to dismiss (Doc. 20) be GRANTED.

PROCEDURAL
BACKGROUND

In his
amended complaint filed January 18, 2018 (Doc. 4), the
operative pleading in this case, see, e.g., Rosa v.
Florida Dep't of Corrections,522 Fed.Appx. 710, 714
(11th Cir. Jun. 26, 2013) ("Under the Federal Rules of
Civil Procedure, 'an amended complaint supersedes the
initial complaint and becomes the operative pleading in the
case.'" (quoting Krinsk v. Sun Trust Banks,
Inc.,654 F.3d 1194, 1202 (11th Cir. 2011)), Plaintiff
briefly sets forth six or seven instances of bullying,
harassment or abuse he allegedly suffered while attending
various public schools in Mobile County from approximately
1993 through 2001. (Doc. 4, at 2-3). And though Plaintiff
averred in the amended complaint that most of his claims
arise under 42 U.S.C. § 2000a, with two arising under 20
U.S.C. § 1703 (see id.), the undersigned has
construed the majority of Plaintiff's claims as arising
under 42 U.S.C. § 2000c, which prohibits discrimination
in public schools, as opposed to § 2000a (Doc. 5, at 1
n.1). Plaintiff seeks the following relief from Defendants
the State of Alabama and the Mobile County Public School
System in accordance with 42 U.S.C. § 2000c-8: "$3,
000, 000.00 for the psychological and physical damages
endured during my time in attendance with the Mobile County
Public School System from the years 1996-2001." (Doc. 4,
at 4.)

The
State of Alabama filed its motion to dismiss on March 26,
2018 where it asserts that Plaintiff's complaint is due
to be dismissed, in accordance with Fed.R.Civ.P. 12(b)(6),
for failure to state a claim against it upon which relief can
be granted. (See Doc. 20, at 1.) The State of
Alabama also argues that it is immune from any federal or
state claims asserted by Fick (see Id. at 2). The
State of Alabama then reasserts its more general assertion
that this Court should dismiss the claims asserted against it
because the complaint "is nothing more than a recitation
of events that allegedly occurred while Plaintiff was
enrolled in the Mobile County School System, attributed
to no one[.]" (Id. at 3-4 (emphasis supplied)).

In his
opposition in response, Fick contests the State's
reliance on the Eleventh Amendment for dismissal of his
complaint given the contents of the Fourteenth Amendment,
particularly the guarantee of equal protection of the laws,
and it being clear, according to Plaintiff, that
Alabama's "'Model Anti-Harassment Policy'
did not, and still does not, protect students from harassment
due to sexual-orientation." (Doc. 24, at 1-2.) The
Plaintiff then proceeds to clarify his claims as follows:

I) Age 13-During P.E. Nathaniel Sebastian slammed my head
against the gymnasium wall and floor, rep[ea]tedly, a total
of 6 times. The faculty of Scarborough Middle School made me
wait until my mother could get off work before I was able to
receive medical attention. The faculty also explained to my
mother that nothing could be done to Nathaniel Sebastian, in
regards to the assault, due to his mental impairment. Also,
when I got to the doctor[']s office I was referred to
Springhill Medical Center for a CAT scan.

II) Age 16-While in attendance at Shaw High School I was
bullied in an excess that being hospitalized for two[]weeks
due to anxiety was necessary. When I returned back to school
Mr. Likely advised my mother to let me drop out because it
seemed like the appropriate thing to do. (Not his exact
words)

III) Age 23-I was diagnosed with AIDS and the specialist
started the treatment immediately. During the second
follow-up appointment Dr. Green explained to me that I
contracted the virus approximately during the ages of 15-17.

IV) Age 24-I was incarcerated within the Mobile County Metro
Jail for 30 day[s], due to the non-payment of traffic
tickets. For 27 days[, ] I was denied the medication my
specialist prescribed to treat the AIDS virus.

V) Age 33-I was diagnosed with PTSD, Panic Attacks, and
Social Phobia.

(Id. at 2-3.)

CONCLUSIONS
OF LAW

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A.
Plead ...

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